Chalepah v. Canon City & Royal Gorge Route
| Decision Date | 31 August 2015 |
| Docket Number | Civil Action No. 13-cv-02166-NYW-KLM |
| Parties | ALAN D. CHALEPAH, Plaintiff, v. CANON CITY AND ROYAL GORGE ROUTE a/k/a Royal Gorge Route Railroad, Defendant. |
| Court | U.S. District Court — District of Colorado |
This matter comes before the court on Defendant Canon City & Royal Gorge Route, a/k/a Royal Gorge Route Railroad's ("RGRR") Motion for Summary Judgment. [#60, filed November 3, 2014]. Also before the court is RGRR's Motion to Strike Portions of Sur-Reply to Defendant's Motion for Summary Judgment ("Motion to Strike"). [#87, filed May 18, 2015]. After carefully considering the Motions and related briefing, the entire case file, and the applicable case law, the Motion for Summary Judgment is GRANTED and the Motion to Strike is DENIED.
Plaintiff Alan D. Chalepah ("Plaintiff" or "Mr. Chalepah") initiated this lawsuit on August 13, 2013 by filing a pro se Complaint. [#1]. The court granted Plaintiff leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on August 20, 2013. [#5, #6]. In the Complaint, Mr. Chalepah asserts various claims associated with the termination of his employment with RGRR, as follows: (1) termination based on Mr. Chalepah's color and/or race in violation ofTitle VII of the Civil Rights Act of 1964 (disparate treatment) [#1 at ¶¶ 19, 32-49]; (2) breach of contract and/or promissory estoppel [id. at ¶¶ 50-65]; (3) negligence [#1 at ¶¶ 66-70]; (4) intentional infliction of emotional distress/harassment [id. at ¶¶ 73-78]; (5) intentional interference with contractual relationship [id. at ¶¶ 79-85]; and (6) abuse of process [id. at ¶¶ 86-92]. Plaintiff seeks compensatory and exemplary damages and injunctive relief. [Id. at 23-24].
In support of his claims, Mr. Chalepah set forth several pages of factual allegations, some of which are recited here. Plaintiff self-identifies as an American-Indian male. [#1 at 3 ¶ 11A]. Beginning on or about May 11, 2007, Mr. Chalepah was employed by RGRR. In 2012, the former Superintendent of Operations announced his resignation and Mr. Chalepah expressed interest in the position to the Assistant General Manager, Glenn Hayes ("Mr. Hayes"). [Id. at ¶11B] Subsequently, unbeknownst to Mr. Chalepah, the position of Superintendent of Operations was divided into two positions: a Manager of Operations and a Chief Mechanical Officer. [Id. at 4 ¶ 11C] Mr. Chalepah was not interviewed for either position, and the position of Manager of Operations was filled by Devon Cacy ("Mr. Cacy"), an individual who had less experience than Mr. Chalepah. [Id. at 4 ¶ 11E.] Mr. Chalepah was displeased with the fact that he was neither interviewed for nor given the position. [Id. at ¶ 11F]
On or about November 1, 2012, Mr. Chalepah confided in Mr. Cacy, a personal friend, that he was upset and was contemplating contacting the Equal Employment Opportunity Commission ("EEOC"). [Id. at ¶ 11G]. Mr. Chalepah does not know whether Mr. Cacy, in turn, told any of the supervisors at RGRR of his intent to contact the EEOC. [Id.] On or about November 5, 2012, Mr. Chalepah received a text message from his supervisor to hurry and return with a company gas card because another employee needed to fuel a work truck. [Id. at ¶ 11I]. He responded "no s**t why don't he drive down here." [Id.] On or about November 5, Mr.Chalepah was suspended by RGRR through Mr. Hayes and Jennifer Keegan ("Ms. Keegan"), an RGRR Human Resources representative, based in part on the text and unspecified "things that have come to [the] attention [of RGRR management]." [Id. at ¶ 11L]. Mr. Chalepah was then terminated a day or two later after he purportedly contacted two employees, Thomas Prather and Wayne Gay ("Mr. Gay"), to create conflict and "help to build a case against the company." [Id. at ¶¶ 11M-N.] The Complaint contains no allegation that Mr. Chalepah had filed any complaint with the EEOC or made any direct complaint to either Mr. Hayes or Ms. Keegan that RGRR had terminated him due to his race.
On September 16, 2013, RGRR filed an Answer [#14] and the Parties consented to the jurisdiction of a United States magistrate judge. [#15]. The case was subsequently referred to Magistrate Judge Boland for all purposes pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2. [#19]. The matter was reassigned to the undersigned Magistrate Judge on February 10, 2015. [#78].
On October 30, 2013, Judge Boland presided over a Scheduling Conference at which he ordered the Parties to amend pleadings on or before December 13, 2013, complete discovery by April 30, 2014, file dispositive motions by May 30, 2014, and prepare for a Final Pretrial Conference to be held August 7, 2014. [#27, #28, #29]. The court also set a four-day trial to begin September 15, 2014. [#31]. At that time, Mr. Chalepah appeared pro se. [Id.] Plaintiff subsequently filed a Motion for appointment of voluntary counsel, which the court granted on December 20, 2013. [#36, #37].
On March 29, 2014, Plaintiff's current counsel, Titus Peterson ("Plaintiff's counsel" or "Mr. Peterson"), was appointed pursuant to the United States District Court's Pilot Program to Implement a Civil Pro Bono Panel. [#39]. Mr. Peterson entered his appearance on May 2, 2014[#40], and on May 14, 2014 filed a Motion to Continue Trial [#41], Motion for Extension of Time to Conduct Discovery and File Dispositive Motions [#42], and Motion for Hearing regarding the status of the case [#43]. On June 2, 2014, the court held a Motions Hearing and Status Conference at which Judge Boland extended the discovery cut-off date to October 3, 2014 and the dispositive motion deadline to November 3, 2014, and vacated the trial date. [#48, #50].
On November 3, 2014, RGRR filed the pending Motion for Summary Judgment along with seventeen attachments. [#60 - #66]. On November 23, 2014, Plaintiff, through his counsel, filed a Response to the Motion for Summary Judgment in which he concedes the claims for breach of contract and/or promissory estoppel, negligence, and intentional interference with contractual relationship, leaving only the claims for (1) discrimination based on race and/or color in violation of Title VII of the Civil Rights Act ("discrimination claims"), (2) intentional infliction of emotional distress/harassment, and (3) abuse of process. [#69 at 24]. The Response is supported in large part by a single-paragraph affidavit that states Plaintiff reviewed the verified facts section contained therein and "swear[s] that these facts are true." [#69 and #69-1]. RGRR filed its Reply on December 11, 2014. [#74].
On December 19, 2014, Plaintiff filed a Motion for Leave to file Amended Response to Defendant's Motion for Summary Judgment ("Motion for Leave"), arguing that the inexperience of Plaintiff's counsel in federal court justified amendment.1 [#75]. Concerned about the representations made in the Motion for Leave, the court held a hearing on April 24, 2014 and required Mr. Chalepah to appear in person. [#82]. After he confirmed that he wished to proceed with Mr. Peterson, the court permitted Plaintiff to file a Sur-Reply of not more than ten pages onor before May 8, 2015 to address facts that he intended to dispute specifically but perhaps did not through his affidavit, but otherwise denied Plaintiff's Motion for Leave. [#82]. See Fed. R. Civ. P. 56(e)(1). Plaintiff timely filed a Sur-Reply. [#94]. On May 18, 2015, RGRR filed the pending Motion to Strike. [#87]. Plaintiff opposed the Motion to Strike on June 12, 2015 [#89], and RGRR filed a Reply on June 29, 2015 [#90].
Mr. Chalepah submitted approximately 360 pages of exhibits in response to RGRR's Motion for Summary Judgment. Despite sorting through these voluminous documents, the court has not found, and Plaintiff has not specifically pointed out, any admissible evidence that creates a genuine issue of material fact with respect to his remaining claims of (1) discrimination; (2) intentional infliction of emotional distress; or (3) abuse of process. For instance, Plaintiff asserts throughout his Response that Mr. Cacy was not qualified, or was less qualified than he, for the Operations Manager position. See [#69 at 2 and 9 at ¶ 21 ()]. However, Plaintiff never points to any evidence that time on the job was the primary consideration for the hiring decision, or that Mr. Cacy did not meet the minimum qualifications or could not perform the functions of the job. See Downes v. Beach, 587 F.2d 469, 472 (10th Cir. 1978) (). As a result, Defendant's proposed facts that are appropriately supported by citations to the record (as set forth below), to which Plaintiff has not pointed to specific, admissible evidence to challenge, are considered uncontroverted.
In addition, RGRR asserts in its Motion for Summary Judgment that its First Requests for Admission should be deemed admitted because Plaintiff did not respond or object to them, and at no point requested additional time to do so. [#60 at 11]. Rule 36 of the Federal Rules of Civil Procedure provides:
A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.
Fed. R. Civ. P. 36(a)(3). A matter admitted under Rule 36 "is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended." Id. at 36(b). RGRR served Plaintiff with the Requests for Admission on March 28, 2014, at which time Plaintiff was proceeding pro se. See [#62-1]. Mr. Peterson was appointed to represent Plainti...
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